Request by minority shareholder for a notary witnessing the shareholders meeting and inefectiveness of corpote resolutions

The General Directorate of Legal Certainty and Public Faith girded to the wording of Article 203 of the Spanish Companies Act (SCA).

The GDLCPF ratified the resolution issued by the Commercial Registry rejecting the recording of a public deed executing corporate resolutions reached by the Shareholders’ Meeting of a Spanish company by the appropriate majority thresholds, that was not witnessed by a Notary public having required it a minority shareholder that was entitled to it. A Notary minuting the AGM verifies the appropriateness of the convening, and gathering of the session, and of the adoption of the resolutions by the shareholders, provided that the Notary is required to witness the meeting with at least five days in advance to the scheduled date. Should any shareholder holding a stake of shares representing at least the 5% in the share capital in a Corporation (S.A.) or the 1% in a limited liability company (S.L.) the resolutions passed therein by the AGM will only be effective if a Notary minutes the session.

In the case analised herein, a shareholder sufficiently entitled did require that a Notary minuted the session of the AGM convened for the 13th of April 2023, and enquired the with the Commercial Registry a preventive measure to impede the recording of any resolutions should the AGM was not witnessed, pursuant to Article 104 of the Commercial Registry Regulation (RRM). On that date the managing body conducted the notary call and the AGM commenced in the presence of a Notary public practising in the relevant district, although the session was not finally minuted by the Notary according to (Art. 203 LSC, art. 101 RRM, art. 209 of the Notarial Regulation) but a mere notarial deed. In conducting the latter, the Notary generally drafts the facts that he attests or perceives himself, however, when minuting an AGM the Notary appointed proceeds to ascertain whether the information, attendance, representation or voting rights of shareholders are encouraged both before and during the gathering of the session, all of which is witnessed by him.

The GDLCPF declined the appeal writ filed by the concerned company against the resolution rejecting the registration of the corporate resolutions passed then, due to the fact that the AGM was not minuted by a Notary public despite that a minority shareholder required it according to Law.

Find the entire text of the Resolución de 11 de octubre de 2023 de la DGSFP.